It’s been nearly three weeks since Donald Trump was declared the winner of the presidential election. But the results are being disputed by Green Party candidate Jill Stein, who has petitioned for a recount in the battleground states of Wisconsin, Pennsylvania and Michigan. Election officials in Wisconsin confirm a statewide recount will begin on Thursday. And Hillary Clinton’s campaign has joined the Wisconsin recount effort. President-elect Donald Trump calls the recounts “ridiculous” and “a scam.” And he says he would’ve won the popular vote were it not for “millions” of illegal voters. Diane and guests discuss recounts, allegations of voter fraud and the 2016 presidential election.


  • Michael Shear White House correspondent, The New York Times
  • Caleb Burns Partner, Wiley Rein’s Election Law & Government Ethics Practice
  • Edward Foley Professor and director of election law, Ohio State University; author of "Ballot Battles: The History of Disputed Elections in the United States"
  • Kim Alexander President and founder of the California Voter Foundation, a non-profit, non-partisan organization focused on improving the election process


  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Wisconsin election officials say they'll begin a statewide recount this week after Green Party candidate Jill Stein filed a petition there. She's alleging that foreign hackers might have altered the results. Hillary Clinton's campaign has joined the Wisconsin recount effort, which may soon include Pennsylvania and Michigan. President-elect Donald Trump now says millions of illegal voters caused him to lose the popular vote.

  • 10:07:29

    MS. DIANE REHMHere in the studio to talk about battleground state recounts and charges of voter fraud, Michael Shear of the New York Times and Caleb Burns of Wiley Rein's Election Law and Government Ethics Practice. And joining us by phone from Columbus, Ohio, Edward Foley of the Ohio State University School of Law. I do invite you, as always, to be part of the program. Give us a call at 800-433-8850. Send an email to Follow us on Facebook or send us a tweet. And welcome to all of you.

  • 10:08:16

    MR. EDWARD FOLEYGood morning.

  • 10:08:16

    MR. MICHAEL SHEARYeah, good to be here.

  • 10:08:19

    REHMMichael Shear, tell us why Jill Stein has taken on this charge.

  • 10:08:26

    SHEARWell, I think only she can tell you in fact what her true motivation is, but I think on the surface, you know, she is reacting to two things, a kind of closeness, not historic closeness, but a closeness in several of these key swing states that Donald Trump won and reports that we've all been seeing over the course of, you know, of the entire election of the possibility that hackers, maybe inspired by the Russian government, have been interfering and meddling in our election process.

  • 10:09:08

    SHEARAnd in particular, there is some research that had been done since the election happened in which some researchers, some professors, have looked at the results and found some anomalies in a handful of precincts in several of these states, which they seem to suggest that Hillary Clinton underperformed, particularly in some precincts versus other precincts and they say it raises questions about whether the machines used in those precincts might have been tampered with.

  • 10:09:42

    SHEARAnyway, all of that has mixed together to cause her to raise money to ask for a recount.

  • 10:09:50

    REHMAnd how much money did she have to raise?

  • 10:09:54

    SHEARWell, she says she's raised up to north of $6 million, at this point. The Wisconsin requires that if you request a recount, want the state to go through that very expensive and time-consuming process, that you essentially post, you know, provide the money for them to do that and that is $3.5 million, which she's done.

  • 10:10:14

    REHMHow quickly, Caleb Burns, would they have to accomplish this recount? The electors are to meet on December 19th.

  • 10:10:27

    MR. CALEB BURNSWell, that's the key key question. The process is not an easy one in the sense that each of Wisconsin's counties is going to conduct either a manual or a hand recount. Ms. Stein has challenged that decision. She wants each of the counties to conduct hand recounts exclusively so that going to get sorted out in a lawsuit that she apparently has filed. But once the counties begin, and they're scheduled to begin this Thursday, that process will be initiated. That process contemplates participation by others.

  • 10:11:03

    MR. CALEB BURNSAnd the Clinton campaign has said it is going to participate and that participation means that they can be either as observers. They can object to certain proceedings and they can record the proceedings. All the while, these county boards of canvassers are going to be maintaining minutes and then, ultimately, deciding what the final count is. They will then transmit those results to the Wisconsin's election commission for certification, but it doesn't stop there, Diane.

  • 10:11:29

    MR. CALEB BURNSAt that point, a party can still challenge the results of the recount in state court and that state court decision can also be appealed, all of which, as you note, the state is attempting to accomplish by December 13th, which is six day before the electoral college meets to cast their votes. And that December 13th date is critical because that's a so-called safe harbor date under federal law that will guarantee that Wisconsin's electoral votes will be counted in the manner as certified by the Wisconsin elections commission through this recount process.

  • 10:12:07

    REHMSo Professor Foley, you've got, in Wisconsin, a difference of about 22,000 votes. In Michigan, Donald Trump is ahead by 10,700 and in Pennsylvania, he's up by 70,000 plus. So that leads to the question, how expansive and how extensive would such a recount have to be to change those numbers?

  • 10:12:47

    FOLEYRight. It would be unheard of, in terms of historical precedent, at least in modern times. First of all, as you indicate, the recount would have to overturn the results in all three states for it to affect the outcome of the electoral college. Just success in one or two wouldn't matter to the magic number of 270 electoral votes that Trump is above and recounts, historically, can change results, about 100 votes, 200 votes or so. It's very rare for a recount to change a result that's greater than 1,000 votes. And as you say, the closest one here is around 10,000 votes.

  • 10:13:27

    REHMSo in your view, Ned Foley (sic) , why do this at this point?

  • 10:13:35

    FOLEYWell, I think that's a very good question one can ask, whether or not recounts are appropriate in this context. And it's not clear that they necessarily will go forward in all three states, even though Ms. Stein is asking for them. A judge has to agree. For example, in Pennsylvania, the procedure there is a little bit different than in the other states. What I do think our system needs are audits and they need that in all elections, no matter how close the margin is or how wide it is.

  • 10:14:02

    FOLEYAnd audits would happen automatically. Candidates would need to ask for them. They wouldn't recount all the ballots in an audit. I think it's important to distinguish what an audit is designed to do, which is to verify the accuracy of the results, compared to a recount, which is a really designed to question the result and potentially overturn the result. So you can debate whether or not a recount is really what's called for here, compared to an audit.

  • 10:14:28

    REHMSo how would an audit actually differ then from a recount?

  • 10:14:36

    FOLEYSo different states do audits differently. And as you know, in our system, each state can sort of design its electoral system its own way. The best kind of audit is what's called a risk-limiting audit, which is designed based on statistics to evaluate how many ballots you need to randomly sample, given the reported margin of victory. So it's a little bit of a sliding scale. The closer the result is, the bigger the random sample needs to be.

  • 10:15:06

    FOLEYAnd a way that works is that if you look at your first random sample and everything checks out, you stop because you've got the statistically requisite confidence in the result. If there is an anomaly in that initial audit, then you expand, say, from one percent of the ballots to ten percent of the ballots, but you don't have to recount all of the ballots in the state.

  • 10:15:29

    REHMOkay. So give me and our listeners and example of what you are terming an anomaly.

  • 10:15:39

    FOLEYWell, you know, there has been there allegations of anomalies this year, but as I understand it, and I'm a law professor not a statistician, but based on the reporting that I've seen, the statisticians who have looked at this say that what's purported to be an anomaly, namely the discrepancy of results on machine counted ballots versus -- or the so-called touchscreen machine voting equipment versus the optical scan voting equipment, that those anomalies can be explained by demographic data and aren't necessarily anomalies.

  • 10:16:18

    FOLEYI think what would be an anomaly in an audit would be where the machine count differed from the paper count. An audit necessarily requires some form of paper record to correspond to what the machine is saying the count is. And so an anomaly would be a discrepancy between what the machine reports and what the paper reports.

  • 10:16:39

    REHMEdward Foley is professor and director of election law at Ohio State University's College of Law. Also, here in the studio, Caleb Burns, partner at Wiley Rein's Election Law and Government Ethics Practice, and Michael Shear, White House correspondent for the New York Times. I want our listeners to know we did invite Dr. Jill Stein to join the show. Her campaign did not respond. Michael Shear, what does she have to do to get Pennsylvania to agree to a recount?

  • 10:17:25

    SHEARWell, as Ned said, there are different rules. I'm not an expert in kind of what the specifics of those rules are. I know in some states, there are petitions that have to be filed precinct by precinct. You have to get specific voters to, you know, specifically sign a little petition requesting that. I believe that may be the case in Pennsylvania and a judge also has to rule as well.

  • 10:17:54

    REHMAll right. We'll take a short break here. If you have questions or comments, do join us, 800-433-8850.

  • 10:20:03

    REHMAnd welcome back. We're talking about recounts of ballots in Wisconsin, Pennsylvania and Michigan. Wisconsin's may begin this week. If Pennsylvania law and petition allow, it may happen in Pennsylvania. And, Michael Shear, is that the same with Michigan?

  • 10:20:31

    SHEARYeah, Michigan is the same way too. I think it's a little bit -- Michigan is a little bit more, I think, like Wisconsin in that regard. Look, I mean, I think the main point here to stress is -- I've been covering politics for 20 years, I've seen lots of recounts -- the, you know, the only ones that ever have chance are ones that are in the, you know, couple-hundred-vote range. I covered a congressional race down in Florida where there were tens of thousands of votes cast. I think the person who won, won by 22 votes or something. I mean, those are the times when recounts happen.

  • 10:21:06

    SHEARAnd, you know, the instance that we're talking about here is so dramatic and so many -- I mean, even in Michigan where it's only about 10,000, a little bit more than 10,000, I mean, it would be a dramatic change to try to, you know, and a dramatic result if it were to be overturned.

  • 10:21:24

    REHMProfessor Foley, we have a tweet from John, who says, "my understanding is that Pennsylvania has no paper ballots. If tampering of the digital machines has occurred, how would they audit?"

  • 10:21:42

    FOLEYWell, that's a very good question. It is true that in many parts of Pennsylvania, they use computerized voting machines that lack any paper record. And that's a problem. Many election experts wish that Pennsylvania had already changed to a different system that would have at least some paper record. And I hope that the one thing that comes out of this process that we're talking about this year for these recounts is a renewed emphasis on the improvements that can be made for the future so that our -- in our next presidential election, we won't have to worry about something like that. But it is an issue. It was flagged in advance of election day that the one state that was potentially vulnerable in this context would be Pennsylvania.

  • 10:22:25

    FOLEYNow there are ways to look at the insides of the computer codes, the computer scientists tell us. But it's not as transparent as a paper ballot or a paper record and doesn't lead to that public confidence that you know the result is accurate. But, again, I think it would be a different situation if we were talking only about Pennsylvania and the margin in Pennsylvania was 1,000 votes or 2,000 votes. Because it's three states and because these margins are so wide, I don't think we have to be worried that the Pennsylvania election was hacked.

  • 10:22:59

    REHMAll right. There's also a question here, is it true that the deadline for filing for a recount in Pennsylvania was November 21st?

  • 10:23:14

    FOLEYWell, if that's -- to me, there's two different processes in Pennsylvania. One is that voters can initiate a precinct-by-precinct recount at the local level. And my understanding is that's the deadline that's passed. The deadline that Jill Stein met was a candidate-initiated -- and it's actually called a judicial contest of the election that could lead to a recount if the judge orders it. But it's a second procedure.

  • 10:23:41

    REHMAll right. Caleb Burns, at the same time this talk of recount is going on, the President-elect Donald Trump has said there are millions of allegedly fake voters out there. And I wonder where that kind of allegation comes from?

  • 10:24:05

    BURNSWell, that's the ultimate irony, isn't it, that we have a Green Party candidate raising money and spending it to initiate these recounts, and with no -- virtually no chance of success either on her own behalf or on behalf of Secretary Clinton. Yet we have the President-elect indicating that there was massive voter fraud in states where Secretary Clinton had won. Yet he's not calling for recounts in any of those states. The one constant we have in this equation is -- and I hope this tamps down any concerns your listeners have -- is that no one has really alleged any particularized, you know, evidence of any type of voter fraud. And nor has anyone alleged any evidence of voter fraud of the scale or magnitude that might overturn the results of the election.

  • 10:24:57


  • 10:24:58

    SHEARYeah. I want to piggyback on that, because lest our Twitter feeds fill up with angry people, I mean, one of the things to stress about what Donald Trump tweeted the other day is that there is just zero evidence of the kind of -- of, A, much voter fraud at all and certainly zero evidence -- and it, essentially, I mean, we called it in our story a baseless claim that there is massive voter fraud across the country.

  • 10:25:27

    SHEARThe thing that struck me so strongly when he tweeted that over the weekend was that it really undermines his entire argument. I mean, he had spent the morning, you know, attacking the Clinton campaign, attacking Jill Stein, saying these recounts are ridiculous. The vote is over. He won. She conceded. And then went on to like allege that there's massive voter fraud which, if there was, would call for recounts all over the country that could call into question his election. So the claim that made was so counter to what you would expect a president-elect to do, which is to sort of say, you know what? time to move on. And so it was a really surprising moment, I thought.

  • 10:26:14

    REHMAll right. I want to open the phones and welcome our listeners in to the discussion. Let's go to Mark in Birmingham, Mich. You're on the air.

  • 10:26:30

    MARKYeah, my comment is -- can you hear me?

  • 10:26:36

    REHMYeah. Go right ahead.

  • 10:26:39

    MARKYeah, my comment is that, you know, I think we should be thinking about the consequences of auditing or recounting with 10, 20, 70,000 votes. the consequences is that it sets the bar for every future election. This is the harm to our system, not Donald Trump's reaction. I think the softness we have for the Democratic Party, for the Obama administration, for Hillary Clinton. I mean, this smacks of the Clinton Foundation and Harry Reid's fooling around with the rules of the Senate. This is why people abandoned the Democratic Party and frankly don't trust the media, based on this discussion. I'm very disappointed.

  • 10:27:27

    BURNSWell, I'll give the Wisconsin legislature a lot of credit. They essentially said, put your money where your mouth is. As we noted at the outset of this show, you know, this is not costing Wisconsin taxpayers any money. Ms. Stein has raised the money. She is going to pay for this recount. And while it may be a fool's errand ultimately, my sense of this is that if it does work its way to completion, whatever the outcome is going to be a good one for the country. On the one hand, if she's right -- and God forbid she is -- that there was some sort of election fraud in Wisconsin -- even worse if it's perpetrated by a foreign actor -- well, then that's something that we need to know and we need to know immediately.

  • 10:28:10

    BURNSBut, on the other hand, and I think the far more likely scenario, is that the vote count may be adjusted by a few votes here and there. But at the end of the day, President-elected Trump will remain President-elect Trump and the country can begin to move from what was a very hotly contested campaign season to the business of governing.

  • 10:28:29


  • 10:28:29

    SHEARWell, and, look, I take the caller's point that there's a lot of passion out there and a lot of anger and a lot of it's directed at the media for whom, you know, people on different sides don't believe are accurately representing what they perceive to be the truth. I guess I would just say that, you know, there are laws that are in place that govern when recounts can happen, when candidates can -- when they're automatically initiated -- when candidates can request them. And, you know, it'd be hard pressed -- I'd be hard pressed to think that the media wouldn't cover these moments when the candidates do request them. That's -- regardless of whatever party was doing it.

  • 10:29:10

    REHMBut what is the foundation on which Jill Stein asked for a recount? Was there an indication that something was wrong?

  • 10:29:23

    BURNSWell, this kind of goes back to the ironic point of President-elect Trump claiming that there was election fraud. And as I said, the one constant in all of this is that Ms. Stein was barely able to allege any type of election fraud. As Michael's noted, at the outset, when she petitioned for the recount in Wisconsin, she referred to articles that many of your listeners have read about, you know, potential hacking by Russian actors and the like. There is one sort of statistical analysis she includes. She notes that absentee ballot voting in Michigan -- excuse me, in Wisconsin, had increased this year. And she points to that as a potential anomaly.

  • 10:30:07

    BURNSInterestingly, Democrat-aligned groups earlier that year -- or this year, I should say, had sued to overturn certain voting restrictions, including a liberalization of the absentee-ballot voting process. So that might answer what, you know, she thinks may be a statistical anomaly here. But at the end of the day, there is no hard evidence of any fraud conducted by Russia or anyone else.

  • 10:30:33

    REHMAnd of course there is so much talk out there on Twitter and Facebook and it really does rile up the whole population. Here's an email from Donna, who says, "I recently talked to someone who's involved in the recount. He said there was a polling place in Wisconsin that had more votes for Trump than there were registered voters. I also read somewhere that the polls that had voting machines had a 7 percent difference compared to those that had paper ballots." Michael.

  • 10:31:15

    SHEARRight. So I can't obviously confirm either of those. I've seen those reports both. I can't confirm either of those are true. I can just say that even if you were to accept the first one, that there was a polling place where there were some, you know, kind of anomaly between registered voters and the number of people who voted, that kind of stuff happens. You know, usually it tends -- ends up being a record-keeping problem. They solve -- they figure it out. But even if that were to be the case, it's, you know, we're talking a matter of a handful of votes and it generally doesn't affect the outcome.

  • 10:31:49

    REHMEd Foley, do you want to comment?

  • 10:31:52

    FOLEYOh, no, I think that's exactly right, what Michael just said. Every election has those sorts of discrepancies in the initial preliminary returns. And there's a canvassing procedure that includes something called reconciliation to check that out before you certify a result. And so those errors get corrected. And there's no reason to believe that anything like that was remotely close to being outcome determinative in this context. And as Hillary Clinton's own attorney, Marc Elias, pointed out, they've been looking over the numbers and the returns with extra vigilance and they don't believe that there's any reason to doubt the outcome of the election.

  • 10:32:31

    REHMThen why, for Heaven's sake, did she join in with Jill Stein on the recount?

  • 10:32:39

    SHEARWell, look, I think there's two reasons that you would do that for the Clinton campaign. One is just a very hyper legal reason, which is you want to have your lawyers in the room in case there's any monkey business, in case there's anything that get's raised that you want to object to. That's just lawyers being careful. There's also the extent to which, in this very emotional campaign, there's 60-plus-million people who voted for Hillary Clinton, and to the extent that some of those supporters want her to be 110 percent sure that she really did lose, you know, if you're the Clinton campaign, you want to be able to say to those tens of millions of people that you're doing everything you can.

  • 10:33:20

    REHMAnd you're listening to "The Diane Rehm Show." And joining us now from Sacramento, California, Kim Alexander. She's president and founder of the California Voter Foundation. That's a non-profit, non-partisan organization focused on improving the election process. Kim Alexander, thanks for joining us.

  • 10:33:50

    MS. KIM ALEXANDERThank you for having me.

  • 10:33:52

    REHMPresident-elect Donald Trump said over the weekend that millions of non-citizens voted illegally. And he named your state, California, as one of the three where this occurred. What's your reaction?

  • 10:34:13

    ALEXANDERWell, you know, without more specifics, it's hard to address the allegations that were conveyed in the president-elect's tweets. And he actually said millions of people voted illegally, not millions of non-citizens. So we're not even sure how -- what exactly he's talking about. And it's -- I think it's dangerous to speculate too much. I do want to emphasize that no system is perfect and that people do make mistakes in elections. And a lot of this discussion about recounts and election integrity have focused on the potential for hacking.

  • 10:34:48

    ALEXANDERI also want to highlight that it's well documented that there have been -- there were several incursions into our election this year by foreign actors to penetrate -- successfully penetrate two state voter registration databases and an attempt to penetrate others, (word?) to steal the emails from one of the parties. And most recently, The Washington Post reported that there was a concerted fake news effort, all in attempt to influence our election. So, you know, there are various ways that people try to influence an election and in ways that are not aboveboard.

  • 10:35:24

    ALEXANDERThere are also just honest mistakes that people make in elections. And California has, I think, the -- one of the best voting systems in the country. We do not allow paperless electronic voting. We banned that. And we do require post-election audits, as your guests were discussing is needed. And what those turn up, when we conduct them -- which is routinely after every election and they're underway now -- is that there are sometimes mistakes that are made. So the value of checking the vote is not just to detect if there was a hack of your election, but also to make sure that there wasn't an honest programming error or a mistake that was made on the part of the election officials.

  • 10:36:03

    REHMSure. Well, Kim, how does one register to vote in California? And how easily could one do it illegally?

  • 10:36:18

    ALEXANDERCalifornia allows people to register online or through a paper application. And it's -- will require that you check a box indicating that you are a citizen and of age to register. And you also must sign your name under penalty of perjury. So if you fill out a fraudulent voter registration form, it's a major crime to do that. And there are very few instances that we hear of people doing that. When your application is submitted -- as is the case with every other state under the help America Vote Act -- you're -- you have to provide an identification number. And in California it's either your driver's license number or the last four digits of your Social Security number.

  • 10:37:05

    REHMI see.

  • 10:37:05

    ALEXANDERSo that number gets checked against the state databases and has to match up in order for your registration to go through. If it doesn't match up, then it's going to be flagged and you're going to have to make extra effort to get registered.

  • 10:37:16

    REHMAnd we have to take a short break here. But I gather, Kim Alexander, you're still counting votes…

  • 10:37:25

    ALEXANDERWe are. We have about a million left to go.

  • 10:37:27

    REHM…in California. All right. Kim Alexander of the California Voter Foundation. Thanks for being with us. And short break, right back.

  • 10:40:02

    REHMWelcome back as we talk about potential recounts in Wisconsin, Pennsylvania and Michigan funded by Jill Stein and her Green Party, who have already raised some $6 million, and Wisconsin is likely to cost about $3.5 million for that recount. Here's an email from Connie in Texas, who says, Donald Trump has said that Stein is only requesting this recount to fill her coffers. How likely is it that she would make money on this process, Michael Shear?

  • 10:40:51

    SHEARYou know, I will defer to some of the election -- the election law people. I do believe that if she raises money in the course of this process that legally she can -- she or the Green Party can use it, although I do also believe that she has said in interviews that the money that she's raising is being set aside in a special kind of account that is specifically and only for the recount. I don't know if that's a legal requirement, or if that is just something that she's -- she's, you know, a restriction she's putting on herself.

  • 10:41:22

    REHMNed Foley?

  • 10:41:23

    FOLEYSo my understanding is that as a matter of law that that money could be used for different political purposes so that this kind of escrow account would be voluntary, but I haven't looked at that provision in the last little while.

  • 10:41:38

    REHMAll right, let's go to Richfield, Connecticut, you're on the air, Tracy.

  • 10:41:45

    TRACYHi Diane, thank you so much for just being such an awesome influence in all our lives.

  • 10:41:49

    REHMThank you, thank you.

  • 10:41:52

    TRACYBut my primary concern is with the Pennsylvania digital recording electronic machines, which have no paper trail. And 10 years ago Marian Schneider, the deputy commission of elections, and the NAACP brought up a lawsuit against these machines because University of Pennsylvania researchers found that these machines had repeatedly malfunctioned in Pennsylvania and other states, and they're known to be vulnerable to malicious tampering.

  • 10:42:28

    TRACYSo this I think is one of the primary concerns, and the only way to find out if these machines have been tampered with, my understanding is --to actually open them up. There's no paper trail, and I think that's a big piece to what Jill Stein's concern is, as...

  • 10:42:50

    REHMAll right, Ned?

  • 10:42:53

    FOLEYDiane, as we were discussing earlier, it's a very valid concern that Pennsylvania has sort of substandard voting equipment and should replace it. I will say that these are expensive, and so the question is at what point do you spend a lot of money in a big state to replace voting equipment, and you may want to get every last year you can out of -- out of your previous purchase.

  • 10:43:15

    FOLEYThe Pennsylvania Supreme Court did take up that case that was just referenced and said that the use of these machines is legal under Pennsylvania law. So the effort to replace them through judicial litigation did not succeed.

  • 10:43:30

    REHMAll right, here's an email from Barry in Virginia, and this is a huge hypothetical. What happens if a recount actually finds evidence that machine voting in a state has been hacked? Is there somehow time to revote? Would the Electoral College be postponed? Could it necessitate a postponement of inauguration? Would Congress or the Supreme Court be the one to decide? Ned?

  • 10:44:09

    FOLEYSo yes, a huge hypothetical, and I guess the first preface is although it's theoretically possible to hack even the Pennsylvania machines, it's important to remember that they are not hooked up to the Internet. So the methodology of hacking would have to be going precinct by precinct to particular places and using a thumb drive to doctor the equipment. So it's just unlikely.

  • 10:44:32

    FOLEYBut in terms of the Electoral College, no, the Constitution requires that the electors meet on the same day in all states. So that date this year is December 19. The Constitution requires Congress to receive those votes at a joint session of Congress. That date is January 6. And the Constitution calls for the inauguration to be January 20. I don't expect any of those deadlines to be missed.

  • 10:44:57

    FOLEYIf for some chance Wisconsin, let's say, couldn't do its recount by the December 19 deadline, even though technically that deadline would be in violation of the Constitution, Congress could still accept the Wisconsin electoral votes. That's what happened in 1960 involving Hawaii, which had a recount that missed the constitutionally required deadline, but -- and we can go into the details if you want, but essentially Hawaii was accepted for John Kennedy, and that was the result of the recount that missed the deadline.

  • 10:45:31

    REHMAnd that was between him and Richard Nixon, who called for the recount there.

  • 10:45:40

    FOLEYWell it was a very ironic situation in that Richard Nixon as vice president of the United States is the president of the Senate and therefore presided over this joint session of Congress, and it was Nixon who had to make the call, at least initially, as to whether to accept the earlier certificate from Hawaii, which would have had him winning, or accept the one for Kennedy. And he -- because it didn't matter as to who won 270 electoral votes, either way Hawaii wasn't enough to swing it one way or the other, Nixon in an effort -- a gesture of magnanimity said why don't we just count the votes for Kennedy and not set a precedent but do that.

  • 10:46:19

    REHMAll right, and here's an email from Alan in Maryland. Please ask what will be the outcome if tampering is found to be somewhat prevalent but not enough to sway the outcome. Can we be assured that every potential hack is found? How can we go ahead from here when we potentially lost our confidence in our voting process, Michael?

  • 10:46:54

    SHEARI think that's actually one of the most likely outcomes, you know, over the course of the next year is just that we are going -- this part of what's going to happen here is a renewed focus on the threat to the digital counting of votes. And, you know, you heard Kim talk about the incursions that have happened not to the voting machines themselves but to the databases and the registration and whatever, and, you know, I suspect that Congress and various institutions of, you know, investigatory institutions will be looking at this whole question of the confidence that we can have in our elections, and that's going to be a discussion that will take place over years, not just weeks.

  • 10:47:37

    REHMSomehow I thought that discussion had begun with Bush v. Gore and that we were going to do something to really correct the process so that the hanging chads of the world would never again appear, but now we're talking about voting machines, same problem.

  • 10:48:01

    SHEARWell same issue but a slightly different problem in the sense that the conversation was begun with Bush v. Gore, and the solution was, well, let's modernize our voting equipment. The discussion has now shifted. Now we have this modern voting equipment, which is subject to other vulnerabilities. We don't worry about hanging chads anymore. Now we worry about Russian operatives infiltrating the equipment.

  • 10:48:28

    SHEARSo the conversation was begun in 2000, but the terms of the debate have shifted, and we've seen the Department of Homeland Security in recent months talk about making our voting equipment a critical infrastructure that has to be protected and with more energy and focus pointed in that direction. As Michael said, this is -- this conversation will continue, but it's going to take place over a matter of years to address these new issues.

  • 10:48:53

    SHEARAnd I think you can't underestimate the impact, the psychological impact, of how people feel and the stories day after day after day of emails from the Democratic National Committee and from the Clinton campaign plastered all over the Internet, allegedly by Russians or with Russian involvement. I mean, that has an effect on the nation's psyche, and that I think is feeding the conspiracy theories on the Internet, and it's feeding all of this question about our vote.

  • 10:49:24

    REHMNed, do you see any basis for Jill Stein's charge that Russians or some other group may have hacked into voting machines in those three states?

  • 10:49:37

    FOLEYNo, and the reason why I say that is because although there has been this other kind of hacking that has occurred, of voter registration databases in Illinois and Arizona, those are very different parts of the electoral process. Those voter registration systems were online. The hacked emails were online. But the tabulation equipment, even in Pennsylvania, was not hooked up to the Internet, and so hacking them is just an altogether different proposition than these other kind of hacks.

  • 10:50:11

    FOLEYSo I don't doubt that there are nefarious actors out there, but their ability to penetrate the tabulation of votes is quite different. That doesn't mean that we shouldn't have paper records, we should, and it doesn't -- and we should also have audits. But there isn't any evidence that I've seen to think that there was a successful penetration of the tabulation process.

  • 10:50:33

    REHMHere's an email from Lisa in North Carolina, who says it surprises me no one is noticing what's going on in North Carolina's governor's election with the very unpopular Governor McCrory refusing to concede that election and demanding a recount based on unfounded claims of voter fraud. Currently he's about 9,700 votes behind. Isn't this at least a useful comparison to Jill Stein's efforts?

  • 10:51:13

    SHEARYes, I mean, I think there's -- you know, what's going on in North Carolina is, you know, similar in the sense that you have a margin that one side says is larger than can be overcome, and the other side is not willing to quite give up yet. I think it's much closer, although even in that case I think would be a historical anomaly if the election were overturned by -- or reversed by a recount.

  • 10:51:38

    REHMWhat do you think about that, Ned?

  • 10:51:40

    FOLEYWell, I agree with that point. I think also remember that's one state and not three. To me it's important to recognize that in the presidential election we're talking about three states that would be necessary to overturn. So the more relevant analogy would be if we were just focusing on Michigan, let's say. But having said that, North Carolina's a little bit different. It's got provisional ballots to a degree that other states don't have. And while recounts check the accuracy of the initial count of ballots, there are other issues involved in reviewing an election in terms of voter eligibility questions.

  • 10:52:17

    FOLEYSo again, I'm not saying that the North Carolina dispute will be successful, but there are issues that have been put on the table, at least alleged, that go beyond the scope of the kind of recount that Jill Stein is calling for.

  • 10:52:31


  • 10:52:32

    BURNSWell, I completely agree. I mean, and this goes back to the point, at least at the presidential level, where there really just are no hard facts to back up and justify either President-elect Trump's tweets or Miss Stein's attempts to proceed with these recounts in these three states.

  • 10:52:52

    REHMWhy did Donald Trump put out those tweets alleging fraudulent voting?

  • 10:52:58

    SHEARWell look, I don't think we know for sure, because if anybody can get into his head, that would be great, but, you know, look. One of the things that Donald Trump has been known to do over the course of this campaign and I think over the course of his life, is pay attention to Breitbart News, pay attention to the kind of, you know, sort of alternative media out there, and there have been, over the last several weeks, you know, reports from some of these sort of conspiracy theory websites about all sorts of illegal immigrants voting and the like. So it's possible that he saw that he saw that and seized upon it and tweeted.

  • 10:53:37

    REHMAnd you're listening to the Diane Rehm Show. And to Harry in Yreka, California, you're on the air.

  • 10:53:48

    HARRYThank you so very much. The comment is the -- in many Republican states, it's illegal for felons to vote. Chris Kovach (sp?) in his state created a list of voters who cannot vote because they were criminals. He passed this out throughout the states and having the other states indicate whether that particular name shows up on their ballots, and if so, they are stricken from the rolls and are handed a provisional ballot.

  • 10:54:25

    HARRYThis happened in Florida in the year 2000 with multiple people being thrown off the vote, off the rolls, and provisional ballots are not counted.

  • 10:54:38

    BURNSWell that's right. There are states that disenfranchise felons, and, you know, that's a matter of state law, and each state might handle it differently, but the fact that a felon may have been given a provisional ballot -- a provisional ballot is just that. It's a provisional ballot. It isn't necessarily counted, but it allows for a vote to be cast and potentially counted if in fact that individual was eligible to vote.

  • 10:55:06

    REHMOne caller wonders about the different laws in different states and to what extent, Ned, that may complicate our whole voting system.

  • 10:55:20

    FOLEYWell that's true. Before I get to that, I just want to clarify one thing about provisional ballots because there is a misunderstanding out there in the public that's important to correct. Federal law actually does require all states to undergo a verification of all provisional ballots, and if they are eligible in terms of the voter being registered and not a felon and so forth, then the state must count that ballot as a matter of federal law and must do so before it certifies the results of the election. So those aren't sort of cast aside. And anyway, I just want to make that point.

  • 10:55:52


  • 10:55:53

    FOLEYOn the -- on the issue of how decentralized our election system should be, I would say that the consensus among election law scholars has been that we are excessively decentralized, and we would do better if -- and looking at other advanced democracies around the world, if there was more election law that was at the federal level.

  • 10:56:14

    FOLEYOn the other hand, one of the key points that's emerged this year is that there's a virtue to decentralization, particularly with respect to the hacking threat, because you'd have to not just hack 50 different states to be sure you were successful but the 8,000 different localities that actually run elections. So there's a tradeoff between centralization versus local control, and that probably has to be decided on an issue-by-issue basis. Some parts of our system should be central, some parts should be local.

  • 10:56:46

    REHMEdward "Ned" Foley, he's professor and director of election law at Ohio State University's College of Law. Caleb Burns is partner at Wiley Rein’s Election Law & Government Ethics Practice. And Michael Shear, White House correspondent for The New York Times. Thank you all so much for joining us.

  • 10:57:10

    SHEARGreat to be here.

  • 10:57:11

    BURNSThank you.

  • 10:57:13

    FOLEYThanks for having me.

  • 10:57:13

    REHMThank you, and thanks, all, for listening. I'm Diane Rehm.

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